Supreme
Court appointments, BAR's own Freedom Rider Margaret Kimberley pointed out a
couple weeks ago, are the clinching argument on behalf of every Democratic
presidential candidate. Send a Republican to the White House, the alibi goes,
and that Republican will send platoons of corporate-funded, anti-choice,
authoritarian, warmongerng, racist, Constitution-shredding, pro-Federalist
black robed goons to the federal bench, and one or two to the Supreme Court.
Some alibis, like "the kid down the street does it all the time," are true, but
beside the point. The point is what kinds of judges do Democrats appoint? What
kinds of judges is Barack Obama appointing?

Back in
2009 we examined the pre-Supreme Court career of Sonia Sotomayor, comparing it
to the pre high court careers of the only two previous nonwhite Supreme Court
justices, Clarence Thomas and Thurgood Marshall. It was evident that
Sotomayor's legal career bore a lot more resemblance to that of Clarence
Thomas than to that of the illustrious Thurgood Marshall, who
defended black people on death row in several states and campaigned for the
undoing of Jim Crow laws for a quarter century.

Instead
of some corporate-funded, anti-choice, authoritarian, warmongerng, racist,
Constitution-shredding, pro-Federalist black robed goon, just who is President
Obama sending to the Supreme Court? Who is Elena Kagan? She has little public
record to go on, but what there is, is profoundly disturbing.

Corporate-funded?
From 2005
to 2008, Elena Kagan served on the Research
Advisory Council of Goldman Sachs' Global Markets Institute. Lawyers and
clients are as a rule both consenting adults (whether human or corporations)
and choose each other for their own reasons.

- Advertisement -

Anti-choice?
As
domestic policy advisor to President Clinton, Elena Kagan was a vigorous
advocate of banning late term
abortions, according to memos obtained by ABC News.

Authoritarian?
Warmongering? Constitution-shredding? There is some evidence indicating that Elena Kagan
supports a view of presidential power that would make Dick Cheney proud. When
being examined by the US Senate for confirmation to her present post as
solicitor general, Kagan agreed with the proposition that the entire planet is
a "battlefield" and anybody the US government snatches from any spot thereon is
subject to being considered something like what Bush used to call an "unlawful
combatant."

Racist?
Pro-federalist? As dean
of Harvard Law School she made 32 tenure-track appointments. 25 went to white
men. Six went to white women, and one to an Asian woman. She managed not to
hire a single black, Latino or Native American tenure track law professor.
Several of her hires were prominent members of the Federalist Society, a cabal
of right wing attorneys whose objective is nothing less than repeal of most of
the 20th century.

- Advertisement -

The
damage that Republican Supreme Court judges like Antonin Scalia and Clarence
Thomas, to name only a couple, have done is truly incalculable. If appointing a
justice who could be counted on to undo and clear away some of that right wing
wreckage is too much to ask, what does it say for the main reason, the
clinching reason given for supporting Democratic presidential candidates?

This is a
crucial and defining moment for the presidency of Barack Obama, the instant at
which he leaves his mark on the high court for perhaps twenty or thirty years
to come. Retiring justice John Paul Stevens is indisputably the most "liberal"
voice on the court, a man with a clear record of opposing many racist practices
and authoritarian tendencies. Stevens is the liberal anchor of the court. To
replace that liberal anchor with anyone less committed to upholding the rights
of the poor and powerless is to unleash and further empower the likes of
Roberts, Scalia and Thomas. That's precisely what President Obama accomplishes
with the appointment of Elena Kagan.

Hundreds,
even thousands of gifted attorneys have voiced their opinions in columns, books
and law journals and blogs on the ills and evils of patriarchy and corporate
rule, on the need to protect nature and the environment, on how to remedy
historic race-based inequities, even on how to end the nation's universal
policy of black mass imprisonment. None of them could be considered for the
Supreme Court. We've come to the point where, to be considered by a Democratic
president for a Supreme Court appointment, one has to be nearly
indistinguishable from a Republican. What does that say about how people-proof
and democracy-proof our parties and political systems have become?

It's time
for everybody to face the fact that the gifted black man in the White House has
not been kidnapped by corporations. He's not being muzzled by mysterious forces,
and he's not waiting for some public or secret signal from on high or down low
to start looking out for the interests of ordinary people. The black man in the
White House today has more in common with the last two or three or ten white
men in that White House than he's ever had with the interests of ordinary
people. His differences with some of them, with Clinton, Reagan and the Bushes,
are more nuance than substance.

Historically,
the last three Democratic presidents all came after Republicans. Democratic
presidents, for some reason, do not succeed other Democrats,. They never leave
small-d democratic legacies upon which to build. What the last three Democrats
in the White House have done is continue and extend the work of their
Republican predecessors after those Republicans have become too unpopular to do
it themselves.

Carter
came in just after the end of the Vietnam war. He did what Nixon and Ford could
not have done, committing the US to military intervention anywhere in the world
that oil supplies were at stake, and began the enormous US military buildup in
the Middle East. After Bush failed twice to get NAFTA through Congress, Bill
Clinton made it his top priority, along with expanding the war on drugs"
initiated under Reagan and Bush. For every two black men in prison when Clinton
took office, there were three when he left. Barack Obama has banned the phrase
"global war on terror" while he continues policies of torture, kidnapping and
secret imprisonment, policies by the way, which Kagan endorses. While the
financial crisis did break in the final days of the Bush administration, Barack
Obama has shoveled upwards of $23 trillion in public funds into the pockets of
Wall Street speculators, more than both Bushes and all his predecessors
together. He has continued the wars in Iraq and Afghanistan and Somalia, spread
them into Pakistan and Yemen, and passed a bailout of the drug and private
health insurance industries disguised as a health care bill.

- Advertisement -

While
it's certainly true that John McCain might have actually have found someone
with horns, pitchfork and a tail, and a pointy head covered by a white sheet to
appoint to the Supreme Court, this is no excuse for what Barack Obama is doing
to millions of the loyal Democrats who voted for him, who expect and deserve
much, much better. It's really time to case excusing Obama by asking "what
would John McCain do?' A better legal yardstick, and one closer to the measure
of black America might be the life and career of Charles Hamilton Houston. A US
army officer in World War 1, Houston attended Harvard Law School too, where he
was chosen editor of the Harvard Law Review. He went on to be the dean of
Howard University Law school and chief counsel for the NAACP, where he mentored
Thurgood Marshall and the team of black and white lawyers who defended blacks
on dozens of death rows and brought Brown V. Board of Education to the Supreme
Court.

Instead
of lowering the bar of expectation by asking"who would John McCain appoint to
the Supreme Court?" we ought to reclaim our own agency and ask "who would
Charles Hamilton Houston appoint?" A former criminal defense lawyer? There
hasn't been one of them on the court since Thurgood Marshall. A public
interest, environmental, or anti-trust lawyer? A human rights lawyer who
opposes torture and unjust wars? Or perhaps someone who isn't even a lawyer.
The possibilities are endless, once we free our minds and our politics from the
people-proof and democracy-proof choices between Republicans and Democrats.

Bruce A. Dixon is based in Atlanta, where he is a member of the
state committee of the Georgia Green Party. He can be reached at
bruce.dixon(at)blackagendareport.com